- (1.) By this Petition, the Petitioners seek to challenge the orders dated 28th August, 1985 and 30th August, 1985 passed by the Assistant Collector of Central Excise Division IV, Bombay II, the copies whereof are annexed as Exhibits 'Q' and 'T' to the Petition.
(2.) Briefly stated, the facts are as under : (i) The 1st Petitioners manufacture various types of vegetable oils at their factory at Vikhroli, Bombay. By a Notification dated 29th May, 1971, the Central Government exempted vegetable products made from indigenous Rice Bran Oil from Excise duty leviable thereon to the extent of Rs. 10/- per quintal subject to the conditions mentioned therein. (ii) The Petitioners were manufacturing vegetable products using indigenous Rice Bran Oil. The Petitioners claimed benefit of exemption under the said Notification dated 29th May, 1971 as amended by Notification No. 40/72- C.E., dated 17-3-1972. The Petitioners first paid the excise duty payable and thereafter claimed refund under the said exemption Notification on monthly basis. Sometime prior to June, 1981, an objection was raised by the Department contending that the benefit of the said exemption Notification was restricted only to the extent of Rice Bran Oil used in vegetable products and started withholding refund due to the Petitioners. For the period commencing from June, 1981 to January, 1982, a sum of Rs. 5,06,192.78 of the Petitioners was thus blocked up. The peti- tioners requested the Department for sanction of the claims expedi- tiously. The Petitioners were allowed refund against Bank Guarantee and after February, 1982 on the Petitioners executing bonds. (iii) By another Notification No. 259/83 dated 15th October, 1983, the Central Government exempted vegetable products made solely from indigenous Rice Bran Oil or from mixture of indigenous Rice Bran Oil and other oils falling under Tariff Item No. 13 of the First Schedule to the Central Excises and Salt Act, 1944 (for short, 'the said Act') from the duty of excise leviable thereon to the extent of Rs. 30/- per quintal subject to conditions mentioned therein. The Petitioners from and after January, 1984 started deducting the amount of rebate available to them on the Gate Passes under approved classification lists. A Notification bearing No. 99/84 dated 30th April, 1984 was issued by the Central Government whereby the said Notification dated 15th October, 1983 was superseded and vegetable products made from indigenous Rice Bran Oil or a mixture of indigenous Rice Bran Oil and other oils were exempted. However, the exemption was made equivalent to the amount calculated at the rate of Rs. 30/- per quintal on the quantity of indigenous Rice Bran Oil used in the manufacture of vegetable products. This Notification became effective from 1st May, 1984. (iv) On 23rd January, 1985, a Show Cause Notice under Section 11(A) of the said Act was issued to the Petitioners calling upon them to Show Cause why a sum of Rs. 23,81,162.66 being refund of rebate of Central Excise for the period June, 1981 to December, 1983 claimed in respect of the entire quantity of vegetable product on the basis of the said earlier Notifications, dated 29th May, 1971 and 15th October, 1983 should not be recovered from the Petitioners. The Petitioners filed their reply to the said Show Cause Notice, inter alia, contending that the same was barred by limitation having regard to the provisions under Section 11(A) of the said Act. (v) On 1st May, 1985, the 2nd Respondent passed an order confirming the demand of Rs. 23,81,162.66 under Section 11(A) of the said Act and directed the Petitioners to pay the said amount within the time specified therein. The Petitioners preferred an Appeal therefrom to the 3rd Respondent. Pending the said Appeal, the Superintendent Central Excise Range IX, Bombay Div. IV issued notice dated 26th February, 1985 under Section 11(A) of the said Act calling upon the Petitioners to Show Cause to the 2nd Respondent why the Petitioners should not pay the sum of Rs. 6,77,075.50, being the rebate of duty availed by the Petitioners vide Gate Passes while clearing vegetable products under the said Notification No. 259/83 dated 15th October, 1983 during the period from 1st January, 1984 to 30th April, 1984. On 26th April, 1985, the Petitioners replied to the Show Cause Notice. (vi) On 24th June, 1985, the 3rd Respondent passed an order on the said Appeal preferred by the Petitioners inter alia holding that the said order of the 2nd Respondent was hit by limitation. The said impugned order dated 1st May, 1985 was set aside by the 3rd Respondent with consequential relief to the Petitioners. On 28th August, 1985, the 2nd Respondent passed an order confirming the demand of Rs. 6,77,075.50 in pursuance of the said show cause notice issued on 26th February, 1985. This Order is under challenge in this Petition. (vii) On 22nd August, 1985, the 2nd Respondent addressed a Show Cause Notice intimating the Petitioners that the 2nd Respondent was proposing to reject the claims of the Petitioners for Rs. 23,81,162.66 for refund for the reasons stated therein and called upon the Petitioners to file their written submissions in respect thereof on or before 28th August, 1985. (viii) By their Advocates' letter dated 22nd August, 1985, the Petitioners showed cause and inter alia contended that the said Show Cause Notice dated 22nd August, 1985 was erroneously issued to them inasmuch as the subject matter thereof, being the refund claims for the period from June, 1981 to December, 1983, was already subject matter of the earlier Show Cause Notice dated 23rd January, 1985 issued to the Petitioners, which was already adjudicated upon, as per the said Order passed by the 3rd Respondent on 24th June, 1985. (ix) On 30th August, 1985, the 2nd Respondent passed an order rejecting all the 32 refund claims of the Petitioners amounting to Rs. 23,81,162.66. This Order of the 2nd Respondent is also under challenge in this Petition.
(3.) Since Mr. Sanklecha, the learned Counsel appearing for Respondents, fairly stated that he is not supporting the said Order dated 28th August, 1985 passed by the 2nd Respondent, it is not necessary to consider the controversy leading to passing of the said Order and the said Order dated 28th August, 1985 passed by the 2nd Respondent is quashed and set aside.;